TaxTMI 
TaxTMI 
2023 (2) TMI 1189
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....lenged by way of filing criminal revision application in the Sessions Court, Aurangabad. Learned Additional Sessions Judge rejected the revision of the petitioner by order dated 25-10-2021 and thus, the petitioner is before this court. Main ground in the petition is about non following of the procedure under Section 202 of the Code of Criminal Procedure and secondly that necessary averment as to attract Section 141 of the Negotiable Instruments Act is absent in the complaint. 2. The facts in nutshell are that : a] The petitioner, a company incorporated under the Companies Act, approached the respondent Credit Cooperative Society having its office at Aurangabad for loan for the purpose of producing of film namely Sab-Kushal-Mangal. Pursua....
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....402131 and the same has been illegally presented by the respondent and prosecution is started. It was requested to the police station that FIR be registered under Sections 406 and 420 of the IPC. In the meantime in the complaint that was lodged bearing SCC No. 4580/2021 Learned JMFC, Aurangabad vide order dated 26-06-2021 issued process against the accused persons. Summons was served on director Rita Panchamiya. She appeared and furnished a bail. 3. The petitioner challenged the order of issuance of process by filing Criminal Revision Application No. 151/2021 through Nitin Dara on the grounds as stated in the earlier paragraph. The learned Additional Sessions Court framed three points :-1] Whether the order passed by leaned JMFC Court 26th....
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...., revision application filed by Nitin Dara is not maintainable. So far as the averments and the grounds that Nitin Dara is not shown as accused is concerned it is observed that he had no nexus with the matter. The specific ground taken by the petitioner in the revision in respect of averments as required under Sections 141 is concerned the Sessions Court has not dealt with said ground and dismissed the revision by judgment and order dated 25-10- 2021. 6. Now the petitioner is before this court. The main ground as stated by the petitioner is that there is no averment in the complaint as required under Sections 141 of the N. I. Act. The revision is wrongly dismissed holding that Nitin Dara has no locus. Further ground that amount of cheque i....
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....he petition. He argued that it is Rita Panchamiya who has signed cheque and documents for the purpose of loan from the respondent society. He submits that demand notice was issued on 28-04-2021. Cheque was presented on 30-03-2021. Resolution was in the name of present representative is dated 13-08-2021, therefore, company is rightly sued through the director. So far as the variance in the amount of the liability of the cheque he submits that amount of interest is added to the loan amount and therefore, prima facie there appear variance however same is to be considered at the stage of trial. As regards following of Section 202 Mandate he submits that from the order passed by the learned JMFC, it is clear that the learned JMFC has gone throug....
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....s of criminal jurisprudence. The provision of Section 141 imposes vicarious liability by deeming fiction. Therefore, unless the company or firm has committed the offence as a principal accused, the person mentioned in sub-section (1) and (2) would not be liable to be convicted on the basis of principles of vicarious liability. The court further considered the case of State of Hariyana Vs Brij Lal Mittal and held that no error was committed by the High Court in allowing the writ petition and quashing the order and the proceeding under Section 138. 10. In the case of Suo Motu Writ Petition (Cri) No. 2 of 2020 regarding expeditious trial of cases under Section 138 of the N. I. Act. it is held that procedure under section 202 is mandatory and ....
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.... amount shown to be due against the petitioner /accused. In view of the judgments cited above, complaint thus is not maintainable. On looking to the order of issuance of process, it is clear that the said order is passed only after perusing the complaint and the documents placed on record and examined of the complainant under Section 200 of the Cr. P. C. Learned JMFC has held that cheque in question was given by the accused to the complainant towards discharge of debt and liability. Thus, the order is seen to have been mechanically passed. From the complaint itself it is clear that the address given of the respondent is of Andheri West Mumbai i.e. out of territorial jurisdiction of the court and therefore, it was mandatory to hold an inquir....